The
Court granted petitioner Danny Harmon's second amended
motion for relief pursuant to 28 U.S.C. § 2255 on March
6, 2018, and entered Final Judgment that same date. Before
the Court is the government's motion to reconsider
pursuant to Federal Rule of Civil Procedure 59(e). For the
reasons explained below, the government's motion to
reconsider, dkt. [77], is denied.

I.
Legal Standard

Federal
Rule of Civil Procedure 59(e) provides that “[a] motion
to alter or amend a judgment must be filed no later than 28
days after the entry of the judgment.” The purpose of a
Rule 59(e) motion is to have the Court reconsider matters
“properly encompassed in a decision on the
merits.” Osterneck v. Ernst and Whinney, 489
U.S. 169, 174 (1988). However, a Rule 59(e) motion “is
not a fresh opportunity to present evidence that could have
been presented earlier.” Edgewood Manor Apartment
Homes, LLC v. RSUI Indem. Co., 733 F.3d 761, 770 (7th
Cir. 2013). Nor does Rule 59(e) “entitle a party to
advance after judgment a non-jurisdictional argument that
could have been presented prior to judgment.”
Lardas v. Grcic, 847 F.3d 561, 566 (7th Cir. 2017).
Instead, to receive the requested relief, the moving party
“must clearly establish (1) that the court committed a
manifest error of law or fact, or (2) that newly discovered
evidence precluded entry of judgment.” Id. A
“manifest error” means “wholesale
disregard, misapplication, or failure to recognize
controlling precedent.” Oto v. Metropolitan Life
Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Relief
through a Rule 59(e) motion for reconsideration is an
“extraordinary remed[y] reserved for the exceptional
case.” Foster v. DeLuca, 545 F.3d 582, 584
(7th Cir. 2008).

II.
Discussion

The
government argues that the Court committed multiple manifest
errors in granting Mr. Harmon's motion for relief
pursuant to § 2255. The Court will begin by discussing
the propriety of the government's arguments in a Rule
59(e) motion. Next, the Court will discuss the
government's arguments as they relate to the performance
and prejudice elements of Mr. Harmon's ineffective
assistance of counsel claim. Lastly, the Court will discuss
the government's objection to the Court's proposed
remedy. The following discussion assumes a knowledge of and
incorporates the factual background and analysis in the
Court's Entry granting Mr. Harmon relief issued on March
6, 2018.

A.
Rule 59(e) Standards

Certain
of the government's arguments are properly raised in a
Rule 59(e) motion-such as the government's argument that
the Court improperly used hindsight in a manner contrary to
Strickland-as they directly respond to how the Court
applied the law and thus could not have been raised earlier.
These arguments are discussed below.

But
many of the government's argument could have been raised
prior to Final Judgment and thus should not have been raised
for the first time in the government's Rule 59(e)
motion.[1]See Miller v. Safeco Ins. Co. of
Am., 683 F.3d 805, 813 (7th Cir. 2012) (“[Rule
59(e)] motions are not appropriately used to advance
arguments or theories that could and should have been made
before the district court rendered a judgment[.]”)
(citation and quotation marks omitted). For example, the
following arguments all could have been raised in briefing or
during closing arguments at the hearing, but were not: (1)
Mr. Harmon's testimony that he would have entered an open
plea if he knew about it is insufficient to establish
prejudice, and he must instead present additional objective
evidence; (2) Mr. Harmon did not have a viable window in
which to enter an open plea; and (3) Mr. Harmon's
requested remedy of a full re-sentencing presents double
jeopardy concerns and provides him with an undue windfall.
These and other arguments addressed below could have been
raised prior to the government's Rule 59(e) motion.

It is
within the Court's discretion to reject these arguments
for failure to raise them prior to Final Judgment, and the
Court does so here. See Lardas, 847 F.3d at 566.
Although the Court also rejects these arguments on the merits
below, this is only to err on the side of thoroughness and to
provide an alternative basis to deny the Rule 59(e) motion.

B.
Deficient Performance

Before
addressing the specifics of the government's arguments
relating to the performance of Mr. Harmon's counsel, Jack
Crawford, the Court must first address two difficulties with
the government's arguments. First, the government's
hindsight argument fails to analytically separate the
performance and prejudice elements of an
ineffective-assistance-of-counsel claim. These are distinct
inquiries that require different analyses. The performance
inquiry requires the Court to determine whether
“counsel's representation fell below an objective
standard of reasonableness, ” while the prejudice
analysis asks if “there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694
(1984). The government is correct that counsel's
performance cannot be judged based on hindsight-that is, the
Court must “reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time.”
Id. at 689. The prejudice inquiry, however, requires
the Court to predict what would have happened but for
counsel's deficient performance. Analyzing these elements
separately is critical, and the government's failure to
do so throughout its brief makes addressing its arguments
difficult.

Second,
and more importantly, the government argues as if Mr. Harmon
could only have entered an open plea to the drug charges
before the superseding indictment was filed, which added the
attempt to kill and intimidate a witness charges. For
example, the government argues that “the window of time
the Court envisioned for [Mr.] Harmon to plead
‘open' did not in fact exist.” Dkt. 77 at p.
7 (capitalization altered). But the Court's analysis did
not depend on Mr. Harmon entering an open plea before the
superseding indictment. Mr. Harmon could have entered an open
guilty plea to just the drug charges at any time, including
long after the superseding indictment was filed. Nor, as the
government argues later in its motion, did Mr. Harmon himself
predicate his claim “on pleading open before
the superseding indictment.” Id., p. 20
(citing dkt. 14, p. 15). The government cites Mr.
Harmon's First Amended Motion to Vacate in support of
this argument, but his Second Amended Motion to Vacate
superseded his First Amended Motion and was operative at the
time of the hearing. It contains no such limitation on Mr.
Harmon's claim. See dkt. 67 at p. 3
(“Trial counsel was ineffective by failing to properly
advise Petitioner that he could choose to plead guilty
without the benefit of a plea agreement or cooperation with
the Government.”). Thus, contrary to the
government's position in the instant motion, neither Mr.
Harmon's arguments nor the Court's analysis depended
on Mr. Harmon entering an open plea before the superseding
indictment added the witness charges against him. Following
the superseding indictment, Mr. Harmon could have entered an
open plea to the drug charges and proceeded to trial on the
witness charges.

With
these two important points in mind, the Court turns to the
performance element. The Court concluded that Mr.
Crawford's performance was deficient in four respects:

First, he failed to recognize and communicate to Mr. Harmon
the strength of the government's case as it changed over
time. Second, he advised his client either that he could only
plead guilty if he cooperated with the government (according
to Mr. Harmon), or that he should not plead guilty because
the acceptance of responsibility reduction would not be of
any benefit to him (according to Mr. Crawford). Third, he
failed to extend and participate in plea negotiations with
the government. Fourth, he operated under the ...

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